1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JOHNSON, No. 2: 19-cv-1752 KJN P 12 Plaintiff, 13 v. ORDER 14 E. HALL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding through counsel. On September 5, 2019, 18 defendants removed this action from Lassen County Superior Court. Defendants request that the 19 court screen this action, pursuant to 28 U.S.C. § 1915A. 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity, regardless of whether 22 plaintiff is represented by counsel. 28 U.S.C. § 1915A(a); In re Prison Litig. Reform Act, 105 23 F.3d 1131, 1134 (6th Cir. 1997) (“District courts are required to screen all civil cases brought by 24 prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is 25 represented by counsel, as [§ 1915A] does not differentiate between civil actions brought by 26 prisoners.”). 27 For the reasons stated herein, plaintiff’s claim alleging violation of his Fourth and 28 Fourteenth Amendment rights is dismissed with leave to amend. 1 Legal Standard for Screening 2 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that 3 are “frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted,” or that 4 “seek[ ] monetary relief from a defendant who is immune from such relief.” 28 U.S.C. 5 § 1915A(b). A claim “is [legally] frivolous where it lacks an arguable basis either in law or in 6 fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 7 28 (9th Cir. 1984). The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations 9 omitted). 10 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 11 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 12 what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 13 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 14 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 15 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 16 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 17 omitted). “‘[T]he pleading must contain something more ... than ... a statement of facts that 18 merely creates a suspicion [of] a legally cognizable right of action.’” Id. (alteration in original) 19 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 20 ed. 2004)). 21 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 22 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 23 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 26 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 27 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 28 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 1 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 2 Plaintiff’s Claims 3 Named as defendants are the California Department of Corrections and Rehabilitation 4 (“CDCR”), High Desert State Prison (“HDSP”), California Correctional Health Care Services 5 (“CCHCS”), Correctional Officers Hall, Hollandsworth, David, Speiker, Phillips, Smith, Shannon 6 and Wentz, and Nurses Chiguaque and Rice. 7 Plaintiff alleges that on June 27, 2017, he was attacked by inmates on the C-yard with 8 some form of weapon. Plaintiff was stabbed in the back. Defendants Hollandsworth, David, 9 Speiker, Phillips, Smith, Shannon, Wentz and Anderson were watching the yard and charged with 10 the safety and security of plaintiff. Plaintiff alleges that the alarm never sounded. Plaintiff 11 grabbed a towel and proceeded toward the gun tower where an officer, believed to be defendant 12 Wentz, did not want to let plaintiff be treated by medical staff. 13 Plaintiff was eventually let inside and told by a correctional officer that someone had long 14 fingernails, because plaintiff had cuts on his back. Plaintiff was placed in a holding cell and 15 began to clean his wounds. Plaintiff noticed that he had a 6 to 7 inch cut on the back of his 16 shoulders along with wounds to the back of his head. As plaintiff cleaned his wounds, defendant 17 Wentz told staff that plaintiff had to be sent back to the yard. Plaintiff alleges that defendants 18 Rice and Chiguaque observed his wounds but did nothing or little to treat them. 19 Plaintiff was instructed to return to the yard. As plaintiff re-entered the yard 20 approximately fifteen minutes after the attack, plaintiff was again attacked by two inmates while 21 defendants Hall, Hollandsworth, David, Speiker, Phillips, Smith, Shannon, Wentz and Anderson 22 were charged with maintaining plaintiff’s safety. At this time, the alarm sounded and defendant 23 Hall yanked plaintiff’s arm back, causing plaintiff to suffer a torn rotator cuff in his right shoulder 24 as plaintiff lay on the ground and was not resisting. 25 The complaint contains the following legal claims: 1) negligence against all defendants; 26 2) excessive force in violation of the Fourth and Fourteenth Amendment against all defendants, 27 except for defendants CCHCS, Rice and Chiguaque; 3) violation of the Bane Act against all 28 defendants, except for defendants CCHCS, Rice and Chiguaque; 4) battery against all defendants, 1 except for defendants CCHCS, Rice and Chiguaque. 2 Plaintiff seeks money damages. 3 Discussions 4 A. Defendants CDCR, HDSP and CCHCS 5 At the outset, the undersigned finds that a state waives Eleventh Amendment immunity by 6 removing a case to federal court. See Lapides v. Board of Regents of University System of 7 Georgia, 535 U.S. 613, 619-24 (2002). That is so because “removal is a form of voluntary 8 invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise valid 9 objection to litigation of a matter ... in a federal forum.” Id. at 624. The waiver applies to both 10 state law and federal law claims, regardless of the motive for removal, and irrespective of any 11 amendments to the complaint made in federal court following removal. Embury v. King, 361 12 F.3d 562, 564-66 (9th Cir. 2004) (“hold[ing] to a straightforward, easy-to-administer rule in 13 accord with Lapides: Removal waives Eleventh Amendment immunity”). 14 Because defendants removed this action, plaintiff’s state and federal claims against 15 defendants CDCR, HDSP and CCHCS are not barred by Eleventh Amendment immunity. 16 Plaintiff alleges that defendants CDCR and HDSP violated his Fourth and Fourteenth 17 Amendment rights pursuant to 42 U.S.C. § 1983. However, CDCR and HDSP are not proper 18 defendants in an action brought pursuant to 42 U.S.C. § 1983 for the following reasons. 19 To succeed on a § 1983 claim, a plaintiff must show that a person acted under color of 20 state law and deprived the plaintiff of rights secured by the Constitution or federal statutes. Long 21 v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). However, a state is not a person 22 for purposes of § 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997) 23 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). State agencies are also not 24 persons within the meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S. at 64. 25 Even if a state waives its Eleventh Amendment immunity in a § 1983 action, it is still not subject 26 to suit because it is not a person under § 1983. Itagaki v. Frank, 2010 WL 2640110 at *4 (D. 27 Haw. 2010) (citing Osterioh v. ARDC, 1996 WL 885548 at *3 n. 3 (D. Neb. 1996)). 28 //// 1 For the reasons discussed above, plaintiff’s § 1983 claims against defendants CDCR and 2 HDSP are dismissed. If plaintiff alleges claims pursuant to § 1983 against these defendants in an 3 amended complaint, the undersigned will recommend that they be dismissed. 4 B. Claims Based on Fourth and Fourteenth Amendment Violations 5 Plaintiff alleges that defendants violated the Fourth and Fourteenth Amendments by using 6 excessive force. As noted by defendants in the notice of removal, excessive force claims brought 7 by prisoners based on alleged excessive force committed by prison officials should be brought 8 under the Eighth Amendment, rather than the Fourth and Fourteenth Amendments. Accordingly, 9 plaintiff’s excessive force claim is dismissed, with leave to amend, because it is improperly 10 brought based on the Fourth and Fourteenth Amendments. 11 The undersigned makes the following additional observations regarding plaintiff’s 12 excessive force claims. 13 To state a claim for damages under 42 U.S.C. § 1983 based on the Eighth Amendment’s 14 prohibition of cruel and unusual punishment through the use of excessive force, a prisoner’s 15 allegations must meet certain tests. The “core judicial inquiry” focuses on “...the nature of the 16 force—specifically, whether it was nontrivial and “was applied …. maliciously and sadistically to 17 cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992); Wilkins v. Gaddy, 559 U.S. 34, 37 18 (2010). Only unnecessary and wanton infliction of pain violates the Cruel and Unusual 19 Punishments Clause of the Eighth Amendment. Hudson, 503 U.S. at 5 (citations omitted). 20 For claims of excessive physical force, courts look to “whether force was applied in a 21 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 22 Id. at 7. Not “every malevolent touch by a prison guard gives rise to a federal cause of action,” 23 and “[t]he Eighth Amendment’s prohibition of cruel and unusual punishments necessarily 24 excludes from constitutional recognition de minimis uses of physical force....” Id. at 9-10 25 (internal quotations and citations omitted). Thus, only force which is employed “maliciously and 26 sadistically to cause harm” rises to the level of an Eighth Amendment violation. Id. at 7. An 27 inmate who “complains of a ‘push or shove’ that causes no discernible injury almost certainly 28 fails to state a valid excessive force claim.” Wilkins, 559 U.S. at 537-38 (quoting Hudson, 503 1 U.S. at 9. 2 In the complaint, plaintiff appears to base his excessive force claim on the alleged attacks 3 by other inmates and defendant Hall’s alleged yanking of plaintiff’s arm, causing a torn rotator 4 cuff, as plaintiff lay on the ground and was not resisting. The allegations against defendant Hall 5 state a potentially colorable Eighth Amendment claim based on excessive force. 6 The theory behind plaintiff’s claim that defendants used excessive force in connection 7 with the attacks by the inmates is less clear. Plaintiff may be alleging that defendants 8 Hollandsworth, David, Speiker, Phillips, Smith, Shannon, Wentz and Anderson failed to protect 9 him from the inmates who committed the first attack by failing to sound the alarm. 10 Prison officials are obligated by the Eighth Amendment to take reasonable measures to 11 protect prisoners from violence by other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). 12 To succeed on a failure-to-protect claim against an official, an inmate must establish three 13 elements. First, the inmate must show that he was incarcerated under conditions posing a 14 substantial risk of serious harm. Id. Second, he must show that the official was deliberately 15 indifferent to his safety. Id. “Deliberate indifference” occurs when an official knows of and 16 disregards an excessive risk to an inmate’s safety. Id. at 837. “[T]he official must both be aware 17 of facts from which the inference could be drawn that a substantial risk of serious harm exists, 18 and he must also draw the inference.” Id. Third, the inmate must show that the defendants’ 19 actions were both an actual and proximate cause of his injuries. Lemire v. Cal. Dep’t of Corr. & 20 Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). This showing means that the inmate’s injury would 21 not have occurred but for the official’s conduct (actual causation) and no unforeseeable 22 intervening cause occurred that would supersede the official’s liability (proximate causation). 23 Conn v. City of Reno, 591 F.3d 1081, 1098-1101 (9th Cir. 2010), vacated by 563 U.S. 915 24 (2011), reinstated in relevant part by 658 F.3d 897 (9th Cir. 2011). 25 Plaintiff has not pled sufficient facts demonstrating that defendants acted with deliberate 26 indifference with respect to the first attack. Plaintiff pleads no facts demonstrating that 27 defendants saw the attack and had the opportunity to take action to stop the attack, such as 28 sounding the alarm. Plaintiff’s allegations that defendants were watching the yard and charged 1 with plaintiff’s safety and security are not sufficient to state a claim for deliberate indifference. If 2 plaintiff includes an Eighth Amendment failure to protect claim against these defendants in an 3 amended complaint, he shall address the issue of deliberate indifference. 4 Plaintiff alleges that defendant Wentz told staff to return plaintiff to the yard after the first 5 attack. The undersigned cannot find that these allegations alone state a potentially colorable 6 Eighth Amendment claim because plaintiff has not pled sufficient facts demonstrating that 7 defendant Wentz acted with deliberate indifference. Plaintiff has not pled sufficient facts 8 demonstrating that defendant Wentz knew that plaintiff faced a substantial risk of serious harm 9 when plaintiff returned to the yard. Plaintiff does not allege, for example, that the inmates who 10 committed the second attack were the same inmates who committed the first attack. Plaintiff also 11 does not allege the attacks were related. If plaintiff includes an Eighth Amendment failure to 12 protect claim against defendant Wentz in an amended complaint, he shall address the issue of 13 deliberate indifference. 14 Plaintiff alleges that at the time of the second attack, defendants Hall, Hollandsworth, 15 David, Speiker, Phillips, Smith, Shannon, Wentz and Anderson were charged with maintaining 16 his safety. Plaintiff alleges that an alarm sounded at the time of the second attack. If plaintiff is 17 alleging that these defendants failed to protect him from the inmates who committed the second 18 attack, plaintiff has not pled sufficient facts demonstrating that these defendants acted with 19 deliberate indifference. Plaintiff does not specifically describe the opportunity these defendants 20 had to intervene to protect plaintiff from the second attack. If plaintiff includes an Eighth 21 Amendment claim against these defendants in an amended complaint, he shall address the issue 22 of deliberate indifference. 23 Plaintiff also alleges that defendants “were aware of widespread beatings and use of 24 excessive force by C.O.s and instead of taking proper steps to discipline these C.O.s, the unlawful 25 conduct and practices were condoned, encouraged, fostered and/or ratified.” Plaintiff’s claim that 26 defendants’ policies, practices and customs led to his injuries is apparently made against 27 defendants CDCR and HDSP. As discussed above, CDCR and HDSP are not proper defendants. 28 Accordingly, this claim is dismissed. 1 Conclusion 2 For the reasons discussed above, plaintiff’s Fourth and Fourteenth Amendment claims are 3 dismissed with thirty days to file an amended complaint. Because plaintiff has not stated a 4 potentially colorable claim pursuant to 42 U.S.C. § 1983, the undersigned does not address 5 plaintiff’s state law claims in this order. 6 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 7 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 8 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 9 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 10 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 11 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 12 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 13 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 14 268 (9th Cir. 1982). 15 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This requirement exists 18 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 19 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 20 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 21 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 22 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 23 and the involvement of each defendant must be sufficiently alleged. 24 //// 25 //// 26 //// 27 //// 28 //// 1 In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s claims alleging 2 | violations of the Fourth and Fourteenth Amendments are dismissed; plaintiff is granted thirty 3 | days from the date of this order to file an amended complaint; if plaintiff does not file an 4 | amended complaint within that time, the undersigned will issue further orders. 5 | Dated: September 13, 2019 ° Fens Arn 7 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

8 9 John1752.14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JOHNSON, No. 2: 19-cv-1752 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 E. HALL, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint

DATED:

21 ________________________________ Plaintiff 22 23 24 25 26 27 28